Guide To The Federal Tort Claims Act
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Under the FTCA, the United States is liable for money damages for loss of the
claimant's property, personal injury, or death caused by the negligent or wrongful act or
mission of any employee of the Government while the employee was acting within the scope
of his/her office of employment.
Proximate Cause. The alleged negligent or wrongful act or omission must have
actually caused the damage to the person filing suit.
An employee of the Federal Government must have committed the negligent or wrongful act
or omission. The Act extends liability to include agents of the Federal Government or
non-Federal employees working on joint ventures or cooperative agreements.
To determine liability for actions involving non-Federal employees under the FTCA, ask
the following questions:
If yes, the Federal Government may be liable for any damages incurred under the FTCA.
The negligent or wrongful act or omission of employees of the Federal Government must
have been committed while employees were acting within their scope of
employment. State law determines the definition of scope of employment. This may/may
not be the same as the Federal Government's definition of official duties.
The Drivers Act section of the FTCA gives statutory immunity to Federal employees while
driving Government vehicles within their scope of employment. This means a Federal
employee involved in an accident while driving a Government motor vehicle in his/her scope
of employment cannot be sued as an individual.
A program activity that causes loss or damage to an individual may be considered
negligent and liable in one State and not in another. The determining factor is the common
law of the State.
Common Law. The common law for a State is a system of law based on judicial
precedent. This is not limited to State statutes. In addition to State statutes, the
interpretations and developments of these statutes that the courts have handed down over
the years also are State law.
Liability under the FTCA is based on what the courts have determined to be common law
of torts in that State. The Federal Government is not protected by any State restrictions
imposed on filing suits against a State, county, or municipal government. If a private
person or company is liable under the tort laws of the State, the United States is liable
in like circumstances.
Analogous Duty. Conversely, if the State law does not consider an activity or
action to create liability under State law, an individual cannot file a claim against the
Federal Government under the FTCA. This is called the doctrine of analogous
State employees should refer to their particular State law on liability, immunity, and
A valid administrative claim is when the appropriate Federal agency receives a written
demand for money damages, indicating a specific dollar amount, signed by the claimant or
someone authorized to sign for the claimant, identifying the cause which led to the
The Federal agency whose program resulted in the claim must receive an administrative
claim. If another Federal agency receives the claim, that agency will immediately forward
the claim to the appropriate agency, if known. If the agency cannot identify the
appropriate agency, the agency must return the claim to the claimant.
A claim against the Government must be in writing and must include a demand for money
damages. The claim may be a letter, form SF-95, Claim for Damage or Injury, or other
written communication which meets the requirements of an administrative claim. (See
Exhibit 1 and Exhibit 2.)
Claimants may use form SF-95 to file a claim under the FTCA. However, if this form does
not contain all the requirements of an administrative claim, then it is not a valid claim.
In addition, not all complaint letters that request money are claims under the FTCA. Some
complaint letters are simply complaint letters and should be treated as such.
All written communication from a party alleging damages and indicating an intent to sue
the United States for money damages should be checked against the requirements of claim
under the FTCA.
An administrative claim must contain a single dollar amount which represents the exact
amount of money damages demanded by the claimant. It does not have to be a reasonable
amount but it must be a number. Claims which do not contain an exact dollar amount or
contain a dollar amount with a qualifying statement such as approximately, at least,
almost, etc., do not meet the requirement of listing a specific sum.
Signature of Claimant
The FTCA obligates the claimant to identify the activity or incident which caused the
claim. The claim must contain sufficient information for the agency to identify the cause
of the complaint. This is to provide the agency an opportunity to investigate the case.
Filing a claim in a Federal or State court does not constitute an administrative claim.
An individual who initiates an action against the United States by filing a claim in a
Federal or State court is not relieved of the requirement to file an administrative claim
with the appropriate Federal agency within 2 years of the accrual of the claim.
A party which the United States is suing may file a counterclaim in that action. A
counterclaim does not have to arise out of the same action which caused Government's suit
but can be based on a separate incident entirely.
A cross-claim is a claim between two parties. In a cross-claim, one defendant is suing
another defendant or one plaintiff is suing another plaintiff.
Third Party Claim
All REE offices which receive a claim for money damages, including form SF-95's or any
correspondence that shows an intent to sue for money damages, must attach the following
information to the claim:
This information is essential in determining the validity of a claim and the agency's
ability to support that determination in court.
The date used in determining compliance with the statute of limitation requirements is
the date the appropriate Federal agency received the claim. All other dates (the
date the claim was prepared, signed by the claimant, or mailed) are irrelevant. An agency
may be liable for claims that fail to meet the statute of limitation requirements if that
agency is unable to verify the date they received the claim.
The name of the individual receiving the claim and the location are also important.
Attorneys for the Government may require an affidavit from the employee receiving the
claim to support a claim denial based on failure to meet the statute of limitation
Offices must maintain all records about the claim, accident, or incident that led to
the claim. This includes all information, papers, documents, evidence, exhibits, etc. The
agency may not dispose of any relevant information until OGC makes a determination in the
claim and closes the case. The time between the accident or incident and the trial date
may be 5 years or more.
Offices that receive and are involved with the claim must notify their appropriate TCR.
Within REE, the various TCR's are:
It is the responsibility of each Federal agency to investigate all accidents or
incidents involving agency programs, employees, or cooperators that lead to the tort
claim. The responsibility for investigating claims within REE is:
This does not exclude other agency program representatives such as Area Safety and
Health Officers from conducting their own investigation. Also, the Office of Inspector
General or other Department representatives may choose to investigate cases involving
Federal criminal law violations, substantial injuries, or death.
The responsible agency will investigate any incident involving personal injury or
property damage involving a third party as soon as possible. It is not necessary to wait
until the injured party files a claim. This is particularly true in motor vehicle
accidents or incidents where there is a strong indication an injured party may file.
The investigation must identify all parties and circumstances involved. When possible,
the office will take pictures to substantiate the investigation. The investigation will
help the designated TCR prepare an administrative report and help determine agency
liability. At no time during an investigation will any agency personnel indicate or imply
liability by the Federal Government.
The Memoranda of Facts and Findings provides the Area or Agency TCR with all the facts
and circumstances involved in the case and provides the basis for the administrative
report. This is necessary for each claim filed under the FTCA. The location TCR prepares
the Memoranda of Facts and Findings for ARS field location and forwards it to the Area
TCR. The Agency TCR prepares when necessary, or assists the administrative officer,
division director, state statistician, or associate/deputy administrator with preparing,
the Memoranda of Facts and Findings for REE Headquarters.
After the office completes the claim investigation, indicating the date, location, and
name of the employee, they must forward the claim to their designated TCR as soon as
possible. This includes the claim and any relevant information regarding the claim,
accident, or incident that led to the claim.
The Area or Agency TCR, in consultation with OGC, will examine all form SF-95's or
written correspondence that indicates an intent to sue for money damages. The TCR will
determine if the claim meets the requirements of a valid administrative claim under the
The designated TCR will notify in writing any party submitting form SF-95 or written
correspondence that does not meet the requirements of an administrative claim as soon as
possible. This notification must identify the deficiencies and cite the law supporting
However, if the TCR does not receive a corrected administrative claim from the claimant
within 4 months after receipt of the initial claim, the TCR will contact OGC to determine
the appropriate course of action. A claimant may elect to treat 6 months after the filing
of a claim as a denial and initiate court action. (See Section 13, Lawsuits Against the
United States.) In this case, the claimant may intentionally ignore the TCR's request for
information and demand for substantiation of the claim.
If the administrative claim is in order, the TCR will acknowledge receipt of the claim,
in writing, informing the claimant or the claimant's representative that the TCR has
referred the claim to OGC and OGC will issue a final determination of the claim. (See
Exhibit 3.) The TCR will not indicate to the claimant whether the agency is assuming any
liability in the case. Agency officials are not to concede anything to the claimant about
the validity or liability of a claim. OGC will inform claimants if their claim meets all
the requirements of an administrative claim and will also issue a determination of a claim
and communicate that determination to all parties involved.
Substantiation of Claim
During the investigation the designated TCR has the option of initiating contact with
the claimant to request information. The contact may be in the form of a letter or a
request for an interview with the claimant or the claimant's representative, family,
friends, etc. A request for information is limited to the facts and circumstances
surrounding the incident, facts that lead to the alleged negligence, or wrongful act or
Unlike a demand for the substantiation of claim, the request for information implies no
obligation on the part of the person asked to respond to or provide the requested
information. A letter requesting information must not assert the agency's rights to
receive a response. It must be in the form of a request (i.e., In order to assist
our investigation, we would appreciate your assistance in answering the following
questions). The claimant does not have to respond to a request for information or
grant an interview. Any attempt to initiate contact with a claimant, the claimant's
representative, family, friends, etc., is limited to cases where the office receives
evidence of an intent to sue the Federal Government.
In circumstances where the potential claimant has not submitted a claim and it is
unclear whether the third party will sue the Government, the investigator will not
initiate contact with the third party, relatives, or friends. In these cases, contact is
limited to other parties involved, such as employees, the police, eyewitnesses, etc.
If the TCR receives any communication from an attorney representing the claimant, all
correspondence relative to the case must be sent through the attorney. This is also true
if an attorney forwards the claimant's letter or form SF-95. At times the only indication
that an attorney is representing a claimant is when the return address on the envelope is
the attorney's address.
Background Information. The background information must provide information to
support the official program that was involved in the incident associated with the claim.
This will help determine if the Federal employee was operating in the scope of his/her
Analysis of Events. The incident analysis must contain detailed analysis of the
events that occurred that lead to the incident and any factors that were discovered during
Relevant Documentation. The Memoranda of Facts and Findings must contain all
documents, files, and photographs associated with the claim.
The TCR will forward the tort claim and administrative report, including copies of all
relevant information (mentioned above) to OGC for claim determination. OGC will base the
claim determination upon receiving and reviewing the completed administrative claim and
the associated documents substantiating the claim. (See Exhibit 6, List of OGC Regional
OGC will determine whether claims are allowed, compromised, or denied and will
appropriately notify claimants. If a claim is allowed in full or compromised, OGC will
notify the Area TCR in writing and begin the payment process.
If OGC denies a claim, they will notify the claimant and the claimant's attorney or
legal representative. The notification will include a statement that if the claimant is
dissatisfied with the Department's action, he/she may file suit in a U. S. District Court
not later than 6 months after the date the notification was mailed.
OGC will notify the TCR, in writing, after they approve a claim for payment. This
written notification will include an Allowance of Tort Claim which identifies the amount
authorized for payment. Payments of $2,500 or less are paid through the appropriation of
the agency's activity that led to the claim. Payments that exceed $2,500 are paid through
the Judgment Fund, Financial Management Services, Department of Treasury. Two-party
payments are no longer issued. Payments are issued in the name of the claimant, however
in the care of may be added when an attorney is involved.
After written notification from OGC, the TCR:
Payment under the Judgment Fund was transferred from the General Accounting Office
(GAO) to the Department of the Treasury, Financial Management Services. The guidance does
not vary substantially from GAO guidance; however, payment authorizations are made using
different forms. The forms are not available through standard forms channels, but agencies
can photocopy forms as necessary. (See Exhibit 8 for photocopy.) The forms are also
available through the Internet at the Department of the Treasury, Financial Management
Service's website at http://www.fms.treas.gov
The appropriate OGC attorney prepares form FMS-195, Judgment Fund Payment Request, form
FMS-196, Judgment Fund Award Data Sheet, and form FMS-197, Voucher for Payment of
Judgements, Compromise Settlements, and Administrative Awards, for awards exceeding
$2,500. (See Appendix 8A, B, & C, respectively, for completed forms.) OGC completes as
much of the form as possible and forwards the package to the appropriate TCR for
completion. The TCR:
It will take approximately 6 weeks for FMS to process payment of claims. If you have
not received any information after 6 weeks, the TCR can call the Judgment Fund Branch
(number above). The Judgment Fund Branch will need specific case information such as the
specific spelling of the case name, the date the claim was sent, and the amount of the
To help ensure prompt processing of claim payments to FMS, the TCR should:
The acceptance by a claimant of any award, compromise, or settlement is final and
conclusive on the claimant and constitutes a complete release of any claim against the
United States and against the Government employee whose act or omission led to the claim.
The TCR must retain copies all memoranda, reports, exhibits, and other documents
supporting the settlement of a claim and make them available to GAO and the Treasury
Department for audit purposes. TCR's cannot destroy or send the records to the Federal
Records Center until after the matter is officially closed. USDA Records Management
Regulations, ASAR 3040-1, states agencies can dispose of files 1 year after final
settlement/disposition of the case, or 1 year after the 2-year statutory limitation on the
filing of claims expires.
There are two instances where the injured party, after submitting an administrative
claim, can file suit against the United States in a Federal District Court. They are:
Claimants may only sue the United States under the FTCA. REE agencies, various REE
programs, and employees cannot be sued under the FTCA. However, this does not prevent a
claimant from suing employees in their official capacity or their individual capacity.
Official Capacity. An employee may be named as a defendant in a suit against the
United States when the claimant seeks damages only against the United States. Employees
are named in the suit because of their official involvement with the case.
Individual Capacity. A claimant may file suit in court against an individual
employee of the Federal Government seeking money damages from an accident or incident
which may or may not involve actions taken within the employee's scope of employment. The
suit is not against the United States but seeks money damages from the individual
If the action or activity which led to the suit was within the outer perimeter of the
employee's duty, the employee may receive legal representation from DOJ. To arrange
representation, OGC must forward a request for representation on behalf of the employee to
DOJ. Submitting this request is strictly voluntary. Employees may provide their own
attorneys. DOJ will make the final determination on a request for representation.
Before OGC submits the request to DOJ, employees must acknowledge that if found liable
by the courts, they must pay the damage. The United States is not authorized to pay for
damages in a judgment brought against employees sued in an individual capacity. Employees
are responsible for their own legal representation in court if OGC declines to submit a
request for representation or DOJ denies the request.
The first step in initiating a lawsuit against the United States is filing a complaint
in Federal District Court. A complaint asks for damages or other relief and sets
forth the basis for relief. A summons is notification that the individual, or a
representative of the United States or the agency, is named in a complaint and must appear
in court on the specified date named to respond to the complaint. An agency involved in a
lawsuit against the United States is notified of the suit when a representative of that
agency or an individual employee receives a complaint or a summons. Most complaints or
summonses involving Federal agencies are sent directly to OGC. Should an individual
employee or agency representative receive a complaint or summons, the employee must
immediately contact their TCR who will immediately contact OGC. A summons or a complaint
against an employee in that employee's individual capacity, filed in a Federal or State
court, requires a response within 20 days of the date mailed or served. A summons or
complaint against the United States or involving a Federal employee operating within that
employee's scope of employment, filed in Federal District Court, requires a response
within 60 days. (For other judicial orders that do not appear to fall under the category
of tort claims, e.g., a subpoena for expert testimony, please refer questions to the Human
Resources Division, ARS/AFM.)
OGC will notify the Agency TCR of all tort claim related complaints or summonses
involving their agency. The notification will include a copy of a form letter, a copy of
the complaint, and the name of the OGC attorney handling the case. In most cases the
complaint will be generally the same as the administrative claim. If the agency has any
new information or new developments to add before OGC responds, the TCR must contact OGC
immediately and forward this information.
Discovery is a chance for each side in a suit to examine the other side's case. This
allows each side to see the facts and circumstances involved in order to attempt to reach
a settlement before the case goes to trial. There are four main types of discovery:
Motion to Dismiss. The United States has 60 days to answer a complaint filed in
Court. The answer is either an admission of liability, a denial, or a denial from lack of
information. In lieu of an answer, DOJ may submit a motion to dismiss because the claimant
failed to meet the statute of limitations or the claim falls within the exclusionary
category. The United States does not have to file a motion to dismiss at the beginning of
litigation. The United States may file after discovery or after reviewing all the
information supporting the claim.
Motion for Summary Judgment. A motion for summary judgment alleges that there
are not material facts in dispute and that, as a matter of law, one side should get the
judgement in its favor.
The final step before trial is the preparation of a pretrial statement. A pretrial
statement is a statement of factual and legal issues that are agreed upon and those that
are in dispute. Also included is a statement about the possibility of settlement. DOJ and
OGC may require the TCR to provide additional information for the pretrial statement.
During the preparation and filing of the pretrial statement, DOJ may request the TCR's
assistance. This may include providing additional information found during the discovery
process and selecting and preparing witnesses for trial. Since the trial may take place 4
or 5 years after the incident that led to the claim, a fair amount of time is necessary to
locate, prepare, and arrange transportation for witnesses. Usually, there is a last minute
attempt to settle before the trial actually begins.
Location Tort Claim Representative (TCR)
Accrual date. A date of the incident causing the loss or damage or when the loss
or damage is, or should have been, discovered by the claimant.
Agency Tort Claim Representative (TCR). The ARS, AFM, PPD, PPB, Personal
Property Group Leader is the designated individual who oversees the tort claim program for
the REE agencies; processes tort claims filed against REE Headquarters, which includes
ARS- Headquarters, CSREES, ERS, NASS, and NASS-Field.
Area Tort Claim Representative (TCR). In most cases, this is the ARS Area
Property Management Officer or other personal property official who is designated as the
tort claim representative for the Area.
Counterclaim. A claim filed in opposition to another claim.
Complaint. A legal document filed with a court asking for damages or other
relief and setting forth the basis for such relief.
Cross-claim. A claim between two parties, either between one defendant suing
another defendant or between one plaintiff suing another plaintiff.
DOJ. Department of Justice.
Form FMS-195. (Local Reproduction). Judgment Fund Payment Request
Form FMS-196. (Local Reproduction). Judgment Fund Award Data Sheet.
Form FMS-197. (Local Reproduction). Voucher for Payment of Judgments, Compromise
Settlements, and Administrative Awards.
Form SF-95. (Available in Informs). Claim for Damage or Injury.
FTCA. Federal Tort Claims Act.
Location Tort Claim Representative (TCR). The ARS Location Administrative
Negligence. The performance of some act which a person of ordinary prudence
would not have done under similar circumstances, the failure to do what a person of
ordinary prudence would have done under similar circumstances, or conduct which falls
below the standard established by law for the protection of others against unreasonable
risk or harm.
OGC. Office of General Counsel.
Omission. The intentional or unintentional failure to act which may impose
liability depending upon the existence of a duty to act under the circumstances.
Summons. A process directed to the sheriff or other proper officer requiring the
officer to notify the person named that an action is filed against the person and that the
person must appear in Court on the specified day to answer the complaint.
Third Part Claim. One party to a suit suing another outside party.
Tort claim. A written request for money damages, indicating a specific dollar
amount, resulting from the violation of an individual's rights, other than a breach of
contract, which has caused a loss of property, property damage, personal injury, or death
to the claimant.
TCR. Tort Claim Representative.
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